Chapter 7, Case No. 808-73781-reg, Adv. Proc. no.
                                  808-8192-reg
           UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF
                                    NEW YORK
                             2009 Bankr. LEXIS 601
                             March 2, 2009, Decided
COUNSEL: For Anthony J Vitta, Debtor: Scott R Schneider, Hicksville, NY.
Trustee: Kenneth Kirschenbaum, Kirschenbaum & Kirschenbaum, P.C., Garden City,
NY.
U.S. Trustee: Diana G. Adams, Office of the United States Trustee, Central
Islip, NY.
JUDGES: Robert E. Grossman, United States Bankruptcy Judge.
OPINION BY: Robert E. Grossman
OPINION
   MEMORANDUM DECISION
   Before the Court is a motion by the Nassau County District Attorney and the
County of Nassau for summary judgment against the Chapter 7 Trustee in this
adversary proceeding. The Chapter 7 Trustee commenced this adversary proceeding
seeking turnover of certain property belonging to the Debtor which was seized by
the Nassau County District Attorney prepetition pursuant to a civil order of
attachment. The Debtor agreed to consent to forfeiture of the subject property
to Nassau County as part of a plea agreement in a criminal matter. The Debtor
filed the instant bankruptcy prior to the date that the Debtor entered into a
stipulation consenting to forfeiture of the property. For the reasons set forth
below, the Court denies the motion for summary judgment and finds that as of the
date the Debtor filed his petition, the property previously seized by the County
of Nassau remained property of the Debtor's estate and is subject to turnover to
the Chapter 7 Trustee.
Background and Facts
   On November 14, 2007, the Debtor was arrested by the Nassau County Police
Department and was charged with criminal sale of a controlled substance in the
third degree, criminal sale of a controlled substance in the fourth degree and
criminal sale of a firearm in the third degree. In conjunction with the criminal
proceeding the Nassau County Civil Forfeiture Unit ("CFU") caused an ex parte
order of attachment to be submitted to the Nassau County Supreme Court for the
State of New York for execution by a judge. The order of attachment was granted
on November 14, 2007 ("Order of Attachment"). On November 14, 2007, the Nassau
County Police Department executed the search warrant at the Debtor's home and
business premises. The Nassau County Police Department, pursuant to the Order of
Attachment seized currency, watches, jewelry, computers and other miscellaneous
property (the "Property"). The Property does not constitute proceeds or
substitute proceeds of the criminal enterprise relating to the criminal charges
then pending against the Debtor.
   On December 7, 2007, the CFU commenced a civil forfeiture action against the
Debtor pursuant to Article 13-A of the New York Civil Practice Law and Rules
("CPLR"). The complaint was served on the Debtor on January 3, 2008. The Order
of Attachment was confirmed on January 14, 2008. On June 17, 2008, the Debtor
pled guilty to reduced felony charges. One of the conditions to the Debtor's
plea was that the Debtor agreed to consent to forfeit the Property. At the plea
hearing before New York Supreme Court Justice Tammy Robbins, Justice Robbins
stated that despite the Debtor's guilty plea, she retained the discretion to
withdraw the reduced sentence being offered and if the reduced sentence was
withdrawn, the Debtor would have the right to withdraw his guilty plea and could
proceed to trial. The Debtor's criminal case was adjourned to August 14, 2008.
   On July 15, 2008 (the "Petition Date"), the Debtor filed a petition for
relief under Chapter 7 of the Bankruptcy Code. On August 28, 2008, the Debtor
executed a Stipulation and Order of Settlement and Discontinuance of Action to
conclude the civil forfeiture action in Nassau County Supreme Court
("Stipulation"). The Stipulation included a list of the Property. The
Stipulation was "so ordered" by Justice Galasso on September 2, 2008. On October
2, 2008, before the Debtor could be sentenced, the Debtor committed suicide.
   On August 28, 2008, the Trustee commenced this adversary proceeding against
the Nassau County District Attorney and the County of Nassau (the "Defendants")
seeking turnover of the Property pursuant to 11 U.S.C. §§ 543(b) and 542,
alleging that the Property is property of the Debtor's estate. On September 23,
2008, the Defendants filed an answer and asserted that the Debtor was divested
of his interest in the Property prepetition and therefore the Property never
became property of the Debtor's estate. On December 11, 2008, the Defendants
made a motion to dismiss the complaint, which the Trustee opposed. At the
hearing held on January 12, 2009, the Court denied the motion to dismiss the
complaint and since both parties relied on materials beyond the complaint in
support of their arguments, the Court converted the motion to dismiss to a
motion for summary judgment. 1
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1   Where
matters outside the pleadings are presented and not excluded by the Court, the
Court has the discretion to convert a motion to dismiss into a motion for
summary judgment pursuant to Federal Rule of Civil Procedure 12(b)(6), made
applicable to these proceedings through Bankruptcy Rule 7012. In this case, the
Court has accepted materials outside the pleading and both parties rely on the
Stipulation, among other documents, in support of their position. In addition,
the parties have consented to the conversion of the motion to dismiss to a
motion for summary judgment.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Discussion
   The Defendants argue that any and all interest the Debtor had in and to the
Property was terminated as of the date of the hearing before Justice Robbins
where the Debtor pled guilty and agreed to forfeit the Property. Therefore, as
of the date of the petition, the Debtor had no interest in the Property and it
never became property of the estate. Furthermore, based on the legal theory of
relation back, title to the Property vested in Nassau County from the time of
the illegal acts, on May 18, 2007. As a result, the Defendants argue that the
Property was not part of the Debtor's estate as of the Petition Date. The
Defendants also assert that the fact that the Stipulation had not been executed
or "so-ordered" as of the Petition Date did not change this result because both
actions were merely ministerial and did not constitute the continuation of a
judicial proceeding under 11 U.S.C. § 362(a)(1). Because the forfeiture was
completed prior to the Petition Date as a matter of law, the actions which
occurred post-petition did not violate the automatic stay. In the alternative,
the Defendants assert that the civil forfeiture proceeding was excepted from the
automatic stay pursuant to 11 U.S.C. § 362(b)(4) as it was a continuation of an
action to enforce the Defendants' police and regulatory powers. Therefore, the
actions taken by the Defendants, including the signing and entry of the
Stipulation, did not violate the automatic stay. The Defendants conclude that
due to the theory of relation back, the post-petition entry of the Stipulation
resulted in vesting the Property with the Defendants as of the date of the
commission of the Debtor's criminal acts.
   The Trustee asserts that as of the Petition Date, the Debtor still retained
an interest in and to the Property, and this interest became property of the
Debtor's estate. The Order of Attachment by itself did not divest the Debtor of
his interest in the Property. The Trustee also asserts that the necessity of
requiring the execution and the "so ordering" of the Stipulation by a Judge was
not a ministerial act. The judge specifically retained the right to consider
whether to sign the Stipulation, and upon signing the Stipulation, the only
ministerial act involved would have been the clerk's entry of the Stipulation on
the docket. The Trustee argues that because all of these acts, and not just the
docketing, took place post petition, the automatic stay was violated unless the
actions fell within one of the exceptions enumerated in § 362(b) of the
Bankruptcy Code. Finally, the Trustee argues that as the administrator of the
Debtor's estate, the Trustee was the only party that could have executed the
Stipulation post-petition. Since the Trustee was not a party to the Stipulation,
the Trustee's due process rights were violated.
Analysis
   1) Standard for Summary Judgment
   Under Federal Rule of Civil Procedure 56(c), made applicable to this
proceeding pursuant to Fed. R. Bankr. P. 7056, a court may not grant summary
judgment unless "the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits . . . show that there is no
genuine issue as to any material fact and that the moving party is entitled to
summary judgment as a matter of law." Marvel Characters, Inc. v. Simon, 310 F.3d
280, 285-86 (2nd Cir. 2002). In making this determination, the court is required
to resolve all ambiguities and draw all factual inferences in favor of the party
opposing summary judgment. Cifra v. G.E. Co., 252 F.3d 205, 216 (2nd Cir. 2001).
It is not the Court=s province to weigh the evidence, assess the credibility of
witnesses or resolve issues of fact - merely to determine whether genuine issues
of material fact exist. Rodriguez v. City of New York, 72 F.3d 1051, 1061 (2nd
Cir. 1995). In this case, neither party raises any material facts requiring
adjudication or discovery. The essential facts encompassed by this adversary
proceeding are undisputed and therefore summary judgment is appropriate.
   2) Property of the Debtor's Estate
   The fundamental issues raised in this adversary proceeding are whether the
Debtor retained an interest in the Property as of the Petition date and whether
that interest was transferred to the Debtor's estate as of the Petition Date.
Resolution of these issues rest in part on whether the Defendants satisfied all
of the statutory predicates required to divest the Debtor of any interest he had
in the Property prior to the Petition Date. According to the Defendants, the
prepetition entry of the Order of Attachment was sufficient to divest the Debtor
of his interest in the Property, and based on the theory of relation back, the
actual date the Debtor lost any interest in the Property is fixed as of the date
the criminal acts were committed. The Defendants commenced the civil forfeiture
action pursuant to Article 13-A of the C.P.L.R., which authorizes the District
Attorney having jurisdiction over the offenses committed by the Debtor, as a
"claiming authority", to recover real property, personal property and other
property of value, which constitute the proceeds, substituted proceeds or
instrumentalities of crime. CPLR § 1310[11]. 2 The actual language of Article
13-A of the CPLR is the starting point for determining whether the Defendants
are correct. Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102,
108 (1980).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -2   The New
York Court of Appeals has held that this statute does not limit the claiming
authority to attachment of assets that can only be linked directly to the
alleged crimes. Rather, attachment under Article 13-A may be used "to reach any
assets of the defendants that could be used to satisfy a potential judgment in
the forfeiture action." Morgenthau v. Citisource, Inc., 68 N.Y.2d 211, 220, 508
N.Y.S.2d 152, 500 N.E.2d 850 (1986).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
   Article 13-A of the CPLR provides in relevant part as follows:
        A civil action may be commenced by the appropriate claiming
     authority against a criminal defendant to recover the property which
     constitutes the proceeds of a crime, the substituted proceeds of a
     crime, an instrumentality of a crime or the real property
     instrumentality of a crime or to recover a money judgment in an amount
     equivalent in value to the property which constitutes the proceeds of
     a crime, the substituted proceeds of a crime, an instrumentality of a
     crime, or the real property instrumentality of a crime. . . . Any
     action under this article . . . shall be civil, remedial, and in
     personam in nature and shall not be deemed to be a penalty or criminal
     forfeiture for any purpose. Except as otherwise specially provided by
     statute, the proceedings under this article shall be governed by this
     chapter. An action under this article is not a criminal proceeding and
     may not be deemed to be a previous prosecution under article forty of
     the criminal procedure law.
        (a) Actions relating to post-conviction forfeiture crimes. An
     action relating to a post-conviction forfeiture crime must be grounded
     upon a conviction of a felony defined in subdivision five of section
     one thousand three hundred ten of this article, or upon criminal
     activity arising from a common scheme or plan of which such a
     conviction is a part, or upon a count of an indictment or information
     alleging a felony which was dismissed at the time of a plea of guilty
     to a felony in satisfaction of such count. A court may not grant
     forfeiture until such conviction has occurred. However, an action may
     be commenced, and a court may grant a provisional remedy provided
     under this article, prior to such conviction having occurred.
        (b) Actions relating to pre-conviction forfeiture crimes. An action
     relating to a pre-conviction forfeiture crime need not be grounded
     upon conviction of a pre-conviction forfeiture crime, provided,
     however, that if the action is not grounded upon such a conviction, it
     shall be necessary in the action for the claiming authority to prove
     the commission of a pre-conviction forfeiture crime by clear and
     convincing evidence. An action under this paragraph shall be stayed
     during the pendency of a criminal action which is related to it;
     provided, that upon motion of a defendant in the forfeiture action or
     the claiming authority, a court may, in the interest of justice and
     for good cause, and with the consent of all parties, order that the
     forfeiture action proceed despite the pending criminal action; and
     provided that such stay shall not prevent the granting or continuance
     of any provisional remedy provided under this article or any other
     provision of law.
CPLR § 1311[1].
   The difference between forfeiture actions applicable to post-conviction
forfeiture crimes (which do not include the drug-related felonies with which the
Debtor was charged) and forfeiture actions applicable to pre-conviction
forfeiture crimes (which apply in this case) is that with pre-conviction
forfeiture crimes, there is no requirement that the defendant be convicted of
the crime. If the defendant is not convicted of the crime, the claiming
authority must prove the commission of such a crime "by clear and convincing
evidence." CPLR 1311[1][b]; Hendley v. Clark, 147 A.D.2d 347, 349, 543 N.Y.S.2d
554, 556 (3d Dep't 1989). As a result, the only difference between these two
forfeiture provisions is that the commission of a pre-conviction forfeiture
crime may be proven, even in the absence of a criminal conviction, by a showing
of clear and convincing evidence of the commission of the crime. Id.
   Under either post- conviction forfeiture or pre-conviction forfeiture,
attachment may be obtained as a provisional remedy prior to a conviction, but no
actual forfeiture or money judgment is granted until either a conviction is
entered, or in the case of a pre-conviction forfeiture proceeding, a finding is
made in the civil forfeiture action that the crime was committed. "In fact, the
civil action [for forfeiture] is stayed during the pendency of the criminal
proceeding, but the stay does not prevent the granting of provisional remedies."
Kuriansky v. Bed-Stuy Health Care Corp., 135 A.D.2d 160, 164, 525 N.Y.S.2d 225,
227 (N.Y. App. Div. 1988). The provisional remedy of attachment only "'result[s]
in a freezing of defendants' assets and not a forfeiture.'" In re Wolfson, 261
B.R. 369, 374 (Bankr. E.D.N.Y. 2001) (citing Kuriansky v. Bed-Stuy Health Care
Corp., 135 A.D.2d at 180, 525 N.Y.S.2d at 237)).
   In this case, the Defendants acknowledges that the only action which took
place prepetition was the seizure of the Property pursuant to the Order of
Attachment and the Defendants' guilty plea. The Stipulation was executed by the
parties, "so-ordered" by the court and entered on the docket post-petition. The
entry of the Order of Attachment is a provisional remedy only, and under the
terms of the statute, does not transfer title in and to the property so seized
to the claiming authority. There is nothing in the applicable statute or case
law which supports the Defendants' position that the plea hearing alone served
to transfer title in the Property to the Defendants. This contention is not even
supported by the transcript from the plea hearing itself. Justice Robbins
acknowledged that her offer of a reduced sentence was just an offer. She also
stated that she retained the right to withdraw the offer, and if she did so, the
Debtor could withdraw his guilty plea and proceed to trial. Since no order was
entered either convicting the Debtor or finding that the Defendants had proven
by clear and convincing evidence that the felonies had been committed, there
could be no forfeiture order. Without entry of such forfeiture order prior to
the Petition Date, the Property remained property of the Debtor's estate.
   Because the Court finds that the Property was property of the estate as of
the Petition Date, the Defendants' argument that the post-petition act of
signing the Stipulation by the Defendant and the "so-ordering" of the
Stipulation by Justice Galasso was a ministerial act fails as a matter of law.
It is well settled that acts taken in violation of the automatic stay are void
and of no effect. Kalb v. Feuerstein, 308 U.S. 433, 439-440 (1940) (citing
Vallely v. Northern Fire § Marine Ins. Co., 254 U.S. 348, 353 (1920)); In re
48th Street Steakhouse, Inc., 835 F.2d 427, 431 (2d Cir.1987); Maritime Elec.
Co. v. United Jersey Bank., 959 F.2d 1194, 1206 (3d Cir.1991); In re Shamblin,
890 F.2d 123, 125-26 (9th Cir.1989). The Defendants assert that the actions
which took place post petition, including the "so-ordering" of the Stipulation
by Justice Galasso, were ministerial acts, and not violative of the automatic
stay. Case law is clear that judicial proceedings are not concluded until the
judge directs entry of a judgment. If the judge has not decided the merits
prepetition, then any acts taken by the judge subsequent to the filing is a
violation of the automatic stay. See Teacher's Ins. & Annuity Ass'n v. Butler,
803 F.2d 61, 66 (2d Cir.1986) (clerk's subsequent entry of a judgment after the
automatic stay became effective did not violate the automatic stay because the
judge had rendered its decision prepetition). An analysis of the very statutes
relied upon by the Defendant makes it abundantly clear that under no
circumstances can the post-petition events in the forfeiture action, including
the Debtor's execution of the Stipulation, be deemed "rote" or "ministerial."
   The Defendants argue in the alternative that the post-petition acts which
occurred in the forfeiture action were exempt from the automatic stay, and that
once the Stipulation was "so ordered" by Justice Galasso, the forfeiture was
deemed to have occurred on the date the illegal acts took place. The Defendants
assert that this is sufficient to divest the Debtor of any interest in the
Property prior to the petition date. The Defendants base their argument on the
legal doctrine of relation back, which is set forth in U.S. v. Stowell, 133 U.S.
1 (1890). U.S. v. Stowell does stand for the proposition under common law that
if, upon the commission of a crime, the property used in or connected with the
criminal act is to be forfeited, the forfeiture is deemed to have taken effect
at the time the offense is committed. U.S. v. Stowell, 133 U.S. at 16-17. U.S.
v. Stowell has been codified in various federal forfeiture statutes including 21
U.S.C. § 853(c), the Federal Comprehensive Forfeiture Act, which provides that
"all right, title, and interest in [forfeitable] property . . . vests in the
United States upon the commission of the act giving rise to forfeiture under
this section." In contrast, Article 13-A of the CPLR only applies to civil
forfeiture proceedings commenced in New York state courts under New York law.
Furthermore, there is nothing in the language of Article 13-A providing that
title in the forfeited vests with the claiming authority as of the commission of
the crime. The court in Kuriansky v. Bed-Stuy Health Care Corp., 135 A.D.2d at
175, 525 N.Y.S.2d at 234, pointed out this difference between the federal
forfeiture statutes and forfeitures under Article 13-A of the CPLR as well, and
noted that the relation back provisions of this statute only permits forfeiture
against third parties in limited circumstances which are not applicable in this
case. In In re Wolfson, Judge Bernstein held that under Article 13-A of the
CPLR, the defendant was divested of his interest in the forfeited assets as of
the date of entry of the stipulation and order, which took place prepetition.
261 B.R. at 374. There is no case cited by the Defendants which finds that
relation back applies in an Article 13-A forfeiture. proceeding. 3
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -3   The
Defendants' reliance on In re Chapman, 264 B.R. 565 (B.A.P. 9th Cir. 2001) is
misplaced as well. In re Chapman involved a forfeiture action commenced by the
federal government pursuant to 21 U.S.C. § 881 which specifically provides that
title in the forfeited property vests in the federal government as of the date
of the criminal activity. Article 13-A of the CPLR has no similar provision.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
   Given that relation back is not applicable in this case, the Property did not
vest in the Defendants prepetition. Therefore, the issue of whether the actions
taken by the Defendants post- petition were exempt under section 362(b)(4) of
the Bankruptcy Code is not relevant to this analysis.
   3) Applicability of the Automatic Stay
   Even if the Court were to decide this issue, nothing would change the Court's
finding that the Property belonged to the Debtor as of the Petition Date. The
Defendants' assertion that the execution and "so-ordering" of the Stipulation
did not violate the automatic stay is based on the Defendants' belief that the
post-petition actions taken by the Defendants are exempt from the automatic stay
under 11 U.S.C. § 362(b)(4). According to the Defendants, all of the actions
taken by the Defendants post-petition fall within this exemption, including
having the Stipulation "so ordered" by Justice Galasso. However, the language of
section 362(b)(4) makes clear that under this subsection, acts taken by the
government in furtherance of its police or regulatory powers to enforce a
judgment "other than a money judgment" are exempt from the automatic stay.
Therefore, any action to enforce the Stipulation and seize the Property, which
belongs to the Debtor, would violate the automatic stay. In re Chapman, 264 B.R.
at 571.
   Any rights the Defendants have in the forfeiture action result in a claim
against the Debtor's estate. The Defendants may file a claim in this case and
have their rights adjudicated in the claims process along with the other
claimants in the Debtor's case.
Conclusion
   For the reasons set forth in this Memorandum Decision, the Court finds that
the Property was property of the Debtor's estate as of the Petition Date. The
civil forfeiture proceeding did not divest the Debtor of title to the Property.
Therefore, the Trustee is entitled to judgment in his favor in this adversary
proceeding, and the Defendants are directed to turn over the Property to the
Trustee. A separate order memorializing these findings shall be entered
forthwith.
   Dated: Central Islip, New York
   March 2, 2009
   By: /s/ Robert E. Grossman
   Robert E. Grossman
   United States Bankruptcy Judge

 

Chapter 7, Case No. 808-73781-reg, Adv. Proc. no.                                 

808-8192-reg

UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF                             NEW YORK
2009 Bankr. LEXIS 601

March 2, 2009, Decided
COUNSEL: For Anthony J Vitta, Debtor: Scott R Schneider, Hicksville, NY.
Trustee: Kenneth Kirschenbaum, Kirschenbaum & Kirschenbaum, P.C., Garden City,NY.
U.S. Trustee: Diana G. Adams, Office of the United States Trustee, CentralIslip, NY.
JUDGES: Robert E. Grossman, United States Bankruptcy Judge.
OPINION BY: Robert E. Grossman
OPINION
   MEMORANDUM DECISION
   Before the Court is a motion by the Nassau County District Attorney and theCounty of Nassau for summary judgment against the Chapter 7 Trustee in thisadversary proceeding. The Chapter 7 Trustee commenced this adversary proceedingseeking turnover of certain property belonging to the Debtor which was seized bythe Nassau County District Attorney prepetition pursuant to a civil order ofattachment. The Debtor agreed to consent to forfeiture of the subject propertyto Nassau County as part of a plea agreement in a criminal matter. The Debtorfiled the instant bankruptcy prior to the date that the Debtor entered into astipulation consenting to forfeiture of the property. For the reasons set forthbelow, the Court denies the motion for summary judgment and finds that as of thedate the Debtor filed his petition, the property previously seized by the Countyof Nassau remained property of the Debtor's estate and is subject to turnover tothe Chapter 7 Trustee.
Background and Facts
   On November 14, 2007, the Debtor was arrested by the Nassau County PoliceDepartment and was charged with criminal sale of a controlled substance in thethird degree, criminal sale of a controlled substance in the fourth degree andcriminal sale of a firearm in the third degree. In conjunction with the criminalproceeding the Nassau County Civil Forfeiture Unit ("CFU") caused an ex parteorder of attachment to be submitted to the Nassau County Supreme Court for theState of New York for execution by a judge. The order of attachment was grantedon November 14, 2007 ("Order of Attachment"). On November 14, 2007, the NassauCounty Police Department executed the search warrant at the Debtor's home andbusiness premises. The Nassau County Police Department, pursuant to the Order ofAttachment seized currency, watches, jewelry, computers and other miscellaneousproperty (the "Property"). The Property does not constitute proceeds orsubstitute proceeds of the criminal enterprise relating to the criminal chargesthen pending against the Debtor.
   On December 7, 2007, the CFU commenced a civil forfeiture action against theDebtor pursuant to Article 13-A of the New York Civil Practice Law and Rules("CPLR"). The complaint was served on the Debtor on January 3, 2008. The Orderof Attachment was confirmed on January 14, 2008. On June 17, 2008, the Debtorpled guilty to reduced felony charges. One of the conditions to the Debtor'splea was that the Debtor agreed to consent to forfeit the Property. At the pleahearing before New York Supreme Court Justice Tammy Robbins, Justice Robbinsstated that despite the Debtor's guilty plea, she retained the discretion towithdraw the reduced sentence being offered and if the reduced sentence waswithdrawn, the Debtor would have the right to withdraw his guilty plea and couldproceed to trial. The Debtor's criminal case was adjourned to August 14, 2008.
   On July 15, 2008 (the "Petition Date"), the Debtor filed a petition forrelief under Chapter 7 of the Bankruptcy Code. On August 28, 2008, the Debtorexecuted a Stipulation and Order of Settlement and Discontinuance of Action toconclude the civil forfeiture action in Nassau County Supreme Court("Stipulation"). The Stipulation included a list of the Property. TheStipulation was "so ordered" by Justice Galasso on September 2, 2008. On October2, 2008, before the Debtor could be sentenced, the Debtor committed suicide.
   On August 28, 2008, the Trustee commenced this adversary proceeding againstthe Nassau County District Attorney and the County of Nassau (the "Defendants")seeking turnover of the Property pursuant to 11 U.S.C. §§ 543(b) and 542,alleging that the Property is property of the Debtor's estate. On September 23,2008, the Defendants filed an answer and asserted that the Debtor was divestedof his interest in the Property prepetition and therefore the Property neverbecame property of the Debtor's estate. On December 11, 2008, the Defendantsmade a motion to dismiss the complaint, which the Trustee opposed. At thehearing held on January 12, 2009, the Court denied the motion to dismiss thecomplaint and since both parties relied on materials beyond the complaint insupport of their arguments, the Court converted the motion to dismiss to amotion for summary judgment. 1
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1   Wherematters outside the pleadings are presented and not excluded by the Court, theCourt has the discretion to convert a motion to dismiss into a motion forsummary judgment pursuant to Federal Rule of Civil Procedure 12(b)(6), madeapplicable to these proceedings through Bankruptcy Rule 7012. In this case, theCourt has accepted materials outside the pleading and both parties rely on theStipulation, among other documents, in support of their position. In addition,the parties have consented to the conversion of the motion to dismiss to amotion for summary judgment.- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Discussion
   The Defendants argue that any and all interest the Debtor had in and to theProperty was terminated as of the date of the hearing before Justice Robbinswhere the Debtor pled guilty and agreed to forfeit the Property. Therefore, asof the date of the petition, the Debtor had no interest in the Property and itnever became property of the estate. Furthermore, based on the legal theory ofrelation back, title to the Property vested in Nassau County from the time ofthe illegal acts, on May 18, 2007. As a result, the Defendants argue that theProperty was not part of the Debtor's estate as of the Petition Date. TheDefendants also assert that the fact that the Stipulation had not been executedor "so-ordered" as of the Petition Date did not change this result because bothactions were merely ministerial and did not constitute the continuation of ajudicial proceeding under 11 U.S.C. § 362(a)(1). Because the forfeiture wascompleted prior to the Petition Date as a matter of law, the actions whichoccurred post-petition did not violate the automatic stay. In the alternative,the Defendants assert that the civil forfeiture proceeding was excepted from theautomatic stay pursuant to 11 U.S.C. § 362(b)(4) as it was a continuation of anaction to enforce the Defendants' police and regulatory powers. Therefore, theactions taken by the Defendants, including the signing and entry of theStipulation, did not violate the automatic stay. The Defendants conclude thatdue to the theory of relation back, the post-petition entry of the Stipulationresulted in vesting the Property with the Defendants as of the date of thecommission of the Debtor's criminal acts.
   The Trustee asserts that as of the Petition Date, the Debtor still retainedan interest in and to the Property, and this interest became property of theDebtor's estate. The Order of Attachment by itself did not divest the Debtor ofhis interest in the Property. The Trustee also asserts that the necessity ofrequiring the execution and the "so ordering" of the Stipulation by a Judge wasnot a ministerial act. The judge specifically retained the right to considerwhether to sign the Stipulation, and upon signing the Stipulation, the onlyministerial act involved would have been the clerk's entry of the Stipulation onthe docket. The Trustee argues that because all of these acts, and not just thedocketing, took place post petition, the automatic stay was violated unless theactions fell within one of the exceptions enumerated in § 362(b) of theBankruptcy Code. Finally, the Trustee argues that as the administrator of theDebtor's estate, the Trustee was the only party that could have executed theStipulation post-petition. Since the Trustee was not a party to the Stipulation,the Trustee's due process rights were violated.
Analysis
   1) Standard for Summary Judgment
   Under Federal Rule of Civil Procedure 56(c), made applicable to thisproceeding pursuant to Fed. R. Bankr. P. 7056, a court may not grant summaryjudgment unless "the pleadings, depositions, answers to interrogatories, andadmissions on file, together with the affidavits . . . show that there is nogenuine issue as to any material fact and that the moving party is entitled tosummary judgment as a matter of law." Marvel Characters, Inc. v. Simon, 310 F.3d280, 285-86 (2nd Cir. 2002). In making this determination, the court is requiredto resolve all ambiguities and draw all factual inferences in favor of the partyopposing summary judgment. Cifra v. G.E. Co., 252 F.3d 205, 216 (2nd Cir. 2001).It is not the Court=s province to weigh the evidence, assess the credibility ofwitnesses or resolve issues of fact - merely to determine whether genuine issuesof material fact exist. Rodriguez v. City of New York, 72 F.3d 1051, 1061 (2ndCir. 1995). In this case, neither party raises any material facts requiringadjudication or discovery. The essential facts encompassed by this adversaryproceeding are undisputed and therefore summary judgment is appropriate.
   2) Property of the Debtor's Estate
   The fundamental issues raised in this adversary proceeding are whether theDebtor retained an interest in the Property as of the Petition date and whetherthat interest was transferred to the Debtor's estate as of the Petition Date.Resolution of these issues rest in part on whether the Defendants satisfied allof the statutory predicates required to divest the Debtor of any interest he hadin the Property prior to the Petition Date. According to the Defendants, theprepetition entry of the Order of Attachment was sufficient to divest the Debtorof his interest in the Property, and based on the theory of relation back, theactual date the Debtor lost any interest in the Property is fixed as of the datethe criminal acts were committed. The Defendants commenced the civil forfeitureaction pursuant to Article 13-A of the C.P.L.R., which authorizes the DistrictAttorney having jurisdiction over the offenses committed by the Debtor, as a"claiming authority", to recover real property, personal property and otherproperty of value, which constitute the proceeds, substituted proceeds orinstrumentalities of crime. CPLR § 1310[11]. 2 The actual language of Article13-A of the CPLR is the starting point for determining whether the Defendantsare correct. Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102,108 (1980).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -2   The NewYork Court of Appeals has held that this statute does not limit the claimingauthority to attachment of assets that can only be linked directly to thealleged crimes. Rather, attachment under Article 13-A may be used "to reach anyassets of the defendants that could be used to satisfy a potential judgment inthe forfeiture action." Morgenthau v. Citisource, Inc., 68 N.Y.2d 211, 220, 508N.Y.S.2d 152, 500 N.E.2d 850 (1986).- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
   Article 13-A of the CPLR provides in relevant part as follows:

        A civil action may be commenced by the appropriate claiming     authority against a criminal defendant to recover the property which     constitutes the proceeds of a crime, the substituted proceeds of a     crime, an instrumentality of a crime or the real property     instrumentality of a crime or to recover a money judgment in an amount     equivalent in value to the property which constitutes the proceeds of     a crime, the substituted proceeds of a crime, an instrumentality of a     crime, or the real property instrumentality of a crime. . . . Any     action under this article . . . shall be civil, remedial, and in     personam in nature and shall not be deemed to be a penalty or criminal     forfeiture for any purpose. Except as otherwise specially provided by     statute, the proceedings under this article shall be governed by this     chapter. An action under this article is not a criminal proceeding and     may not be deemed to be a previous prosecution under article forty of     the criminal procedure law.
        (a) Actions relating to post-conviction forfeiture crimes. An     action relating to a post-conviction forfeiture crime must be grounded     upon a conviction of a felony defined in subdivision five of section     one thousand three hundred ten of this article, or upon criminal     activity arising from a common scheme or plan of which such a     conviction is a part, or upon a count of an indictment or information     alleging a felony which was dismissed at the time of a plea of guilty     to a felony in satisfaction of such count. A court may not grant     forfeiture until such conviction has occurred. However, an action may     be commenced, and a court may grant a provisional remedy provided     under this article, prior to such conviction having occurred.
        (b) Actions relating to pre-conviction forfeiture crimes. An action     relating to a pre-conviction forfeiture crime need not be grounded     upon conviction of a pre-conviction forfeiture crime, provided,     however, that if the action is not grounded upon such a conviction, it     shall be necessary in the action for the claiming authority to prove     the commission of a pre-conviction forfeiture crime by clear and     convincing evidence. An action under this paragraph shall be stayed     during the pendency of a criminal action which is related to it;     provided, that upon motion of a defendant in the forfeiture action or     the claiming authority, a court may, in the interest of justice and     for good cause, and with the consent of all parties, order that the     forfeiture action proceed despite the pending criminal action; and     provided that such stay shall not prevent the granting or continuance     of any provisional remedy provided under this article or any other     provision of law.

CPLR § 1311[1].
   The difference between forfeiture actions applicable to post-convictionforfeiture crimes (which do not include the drug-related felonies with which theDebtor was charged) and forfeiture actions applicable to pre-convictionforfeiture crimes (which apply in this case) is that with pre-convictionforfeiture crimes, there is no requirement that the defendant be convicted ofthe crime. If the defendant is not convicted of the crime, the claimingauthority must prove the commission of such a crime "by clear and convincingevidence." CPLR 1311[1][b]; Hendley v. Clark, 147 A.D.2d 347, 349, 543 N.Y.S.2d554, 556 (3d Dep't 1989). As a result, the only difference between these twoforfeiture provisions is that the commission of a pre-conviction forfeiturecrime may be proven, even in the absence of a criminal conviction, by a showingof clear and convincing evidence of the commission of the crime. Id.
   Under either post- conviction forfeiture or pre-conviction forfeiture,attachment may be obtained as a provisional remedy prior to a conviction, but noactual forfeiture or money judgment is granted until either a conviction isentered, or in the case of a pre-conviction forfeiture proceeding, a finding ismade in the civil forfeiture action that the crime was committed. "In fact, thecivil action [for forfeiture] is stayed during the pendency of the criminalproceeding, but the stay does not prevent the granting of provisional remedies."Kuriansky v. Bed-Stuy Health Care Corp., 135 A.D.2d 160, 164, 525 N.Y.S.2d 225,227 (N.Y. App. Div. 1988). The provisional remedy of attachment only "'result[s]in a freezing of defendants' assets and not a forfeiture.'" In re Wolfson, 261B.R. 369, 374 (Bankr. E.D.N.Y. 2001) (citing Kuriansky v. Bed-Stuy Health CareCorp., 135 A.D.2d at 180, 525 N.Y.S.2d at 237)).
   In this case, the Defendants acknowledges that the only action which tookplace prepetition was the seizure of the Property pursuant to the Order ofAttachment and the Defendants' guilty plea. The Stipulation was executed by theparties, "so-ordered" by the court and entered on the docket post-petition. Theentry of the Order of Attachment is a provisional remedy only, and under theterms of the statute, does not transfer title in and to the property so seizedto the claiming authority. There is nothing in the applicable statute or caselaw which supports the Defendants' position that the plea hearing alone servedto transfer title in the Property to the Defendants. This contention is not evensupported by the transcript from the plea hearing itself. Justice Robbinsacknowledged that her offer of a reduced sentence was just an offer. She alsostated that she retained the right to withdraw the offer, and if she did so, theDebtor could withdraw his guilty plea and proceed to trial. Since no order wasentered either convicting the Debtor or finding that the Defendants had provenby clear and convincing evidence that the felonies had been committed, therecould be no forfeiture order. Without entry of such forfeiture order prior tothe Petition Date, the Property remained property of the Debtor's estate.
   Because the Court finds that the Property was property of the estate as ofthe Petition Date, the Defendants' argument that the post-petition act ofsigning the Stipulation by the Defendant and the "so-ordering" of theStipulation by Justice Galasso was a ministerial act fails as a matter of law.It is well settled that acts taken in violation of the automatic stay are voidand of no effect. Kalb v. Feuerstein, 308 U.S. 433, 439-440 (1940) (citingVallely v. Northern Fire § Marine Ins. Co., 254 U.S. 348, 353 (1920)); In re48th Street Steakhouse, Inc., 835 F.2d 427, 431 (2d Cir.1987); Maritime Elec.Co. v. United Jersey Bank., 959 F.2d 1194, 1206 (3d Cir.1991); In re Shamblin,890 F.2d 123, 125-26 (9th Cir.1989). The Defendants assert that the actionswhich took place post petition, including the "so-ordering" of the Stipulationby Justice Galasso, were ministerial acts, and not violative of the automaticstay. Case law is clear that judicial proceedings are not concluded until thejudge directs entry of a judgment. If the judge has not decided the meritsprepetition, then any acts taken by the judge subsequent to the filing is aviolation of the automatic stay. See Teacher's Ins. & Annuity Ass'n v. Butler,803 F.2d 61, 66 (2d Cir.1986) (clerk's subsequent entry of a judgment after theautomatic stay became effective did not violate the automatic stay because thejudge had rendered its decision prepetition). An analysis of the very statutesrelied upon by the Defendant makes it abundantly clear that under nocircumstances can the post-petition events in the forfeiture action, includingthe Debtor's execution of the Stipulation, be deemed "rote" or "ministerial."
   The Defendants argue in the alternative that the post-petition acts whichoccurred in the forfeiture action were exempt from the automatic stay, and thatonce the Stipulation was "so ordered" by Justice Galasso, the forfeiture wasdeemed to have occurred on the date the illegal acts took place. The Defendantsassert that this is sufficient to divest the Debtor of any interest in theProperty prior to the petition date. The Defendants base their argument on thelegal doctrine of relation back, which is set forth in U.S. v. Stowell, 133 U.S.1 (1890). U.S. v. Stowell does stand for the proposition under common law thatif, upon the commission of a crime, the property used in or connected with thecriminal act is to be forfeited, the forfeiture is deemed to have taken effectat the time the offense is committed. U.S. v. Stowell, 133 U.S. at 16-17. U.S.v. Stowell has been codified in various federal forfeiture statutes including 21U.S.C. § 853(c), the Federal Comprehensive Forfeiture Act, which provides that"all right, title, and interest in [forfeitable] property . . . vests in theUnited States upon the commission of the act giving rise to forfeiture underthis section." In contrast, Article 13-A of the CPLR only applies to civilforfeiture proceedings commenced in New York state courts under New York law.Furthermore, there is nothing in the language of Article 13-A providing thattitle in the forfeited vests with the claiming authority as of the commission ofthe crime. The court in Kuriansky v. Bed-Stuy Health Care Corp., 135 A.D.2d at175, 525 N.Y.S.2d at 234, pointed out this difference between the federalforfeiture statutes and forfeitures under Article 13-A of the CPLR as well, andnoted that the relation back provisions of this statute only permits forfeitureagainst third parties in limited circumstances which are not applicable in thiscase. In In re Wolfson, Judge Bernstein held that under Article 13-A of theCPLR, the defendant was divested of his interest in the forfeited assets as ofthe date of entry of the stipulation and order, which took place prepetition.261 B.R. at 374. There is no case cited by the Defendants which finds thatrelation back applies in an Article 13-A forfeiture. proceeding. 3
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -3   TheDefendants' reliance on In re Chapman, 264 B.R. 565 (B.A.P. 9th Cir. 2001) ismisplaced as well. In re Chapman involved a forfeiture action commenced by thefederal government pursuant to 21 U.S.C. § 881 which specifically provides thattitle in the forfeited property vests in the federal government as of the dateof the criminal activity. Article 13-A of the CPLR has no similar provision.- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
   Given that relation back is not applicable in this case, the Property did notvest in the Defendants prepetition. Therefore, the issue of whether the actionstaken by the Defendants post- petition were exempt under section 362(b)(4) ofthe Bankruptcy Code is not relevant to this analysis.
   3) Applicability of the Automatic Stay
   Even if the Court were to decide this issue, nothing would change the Court'sfinding that the Property belonged to the Debtor as of the Petition Date. TheDefendants' assertion that the execution and "so-ordering" of the Stipulationdid not violate the automatic stay is based on the Defendants' belief that thepost-petition actions taken by the Defendants are exempt from the automatic stayunder 11 U.S.C. § 362(b)(4). According to the Defendants, all of the actionstaken by the Defendants post-petition fall within this exemption, includinghaving the Stipulation "so ordered" by Justice Galasso. However, the language ofsection 362(b)(4) makes clear that under this subsection, acts taken by thegovernment in furtherance of its police or regulatory powers to enforce ajudgment "other than a money judgment" are exempt from the automatic stay.Therefore, any action to enforce the Stipulation and seize the Property, whichbelongs to the Debtor, would violate the automatic stay. In re Chapman, 264 B.R.at 571.
   Any rights the Defendants have in the forfeiture action result in a claimagainst the Debtor's estate. The Defendants may file a claim in this case andhave their rights adjudicated in the claims process along with the otherclaimants in the Debtor's case.
Conclusion
   For the reasons set forth in this Memorandum Decision, the Court finds thatthe Property was property of the Debtor's estate as of the Petition Date. Thecivil forfeiture proceeding did not divest the Debtor of title to the Property.Therefore, the Trustee is entitled to judgment in his favor in this adversaryproceeding, and the Defendants are directed to turn over the Property to theTrustee. A separate order memorializing these findings shall be enteredforthwith.
   Dated: Central Islip, New York
   March 2, 2009
   By: /s/ Robert E. Grossman
   Robert E. Grossman
   United States Bankruptcy Judge